tv [untitled] April 6, 2011 5:00pm-5:30pm PDT
>> good evening. welcome to the april 6, 2011 meeting of the san francisco board of appeals. the presiding officer is president goh. michael garcia will be absent this evening. the deputy city attorney will provide any needed legal advice on the first appeal on tonight's calendar, after which kathryn barnes will be on hand to assist the board. to my right is the legal process
court. i am the board's executive director. we are joined by representatives from some of the city departments who will have cases before the board this evening. scott chances is here, the city zoning administrator -- scott sanchez is here, the city zoning and minister, also representing the planning department. the senior building inspector is representing the department of building inspection. we have the environmental health section of the department of public health. jarvis murray is representing muni. i am going to go over meeting guidelines and conduct the swearing in process. the board requests to turn off all phones, beepers, and pagers. please carry on conversations in the hallway. the rules of presentation are as follows. appellants, permit holders, and department respondents have seven minutes to present their
cases and three minutes for rebuttal. members of the public who are not affiliated with the parties have up to three minutes each to address the board, and no rebuttal. please speak into the end of the microphone. to assist in accurate proportion of minutes, you are asked but not required to submit a speaker card or business card. they are available on the left side of the podium. the board welcomes your comments and suggestions. there are forms on the podium for your convenience. the board rules for -- if you are interested in more information, please contact the staff after the meeting or at our office. this meeting is broadcast on sfgtv and rebroadcast on fridays at 4:00. dvd's are available for purchase.
i will swear or affirm in all those who intend to testify at any of tonight's hearings. please stand, raise your right hand, and say "i do" after you have been affirmed. do you swear the testimony you are about to give will be the truth and nothing but the truth? thank you. moving on to our agenda, the first item is public comment. is there any member of the public who wishes to speak on an item that is not on tonight's agenda? seeing none, moving to item 2 below, commissioner comments and questions -- to item two, commissioner comments and questions. commissioner hwang: on the next hearing, and the need to leave early -- i mean need to leave
early, 6:45. >> is that april 20? we will move to item three. before you, discussion and possible adoption of the meetings from the march 23 meeting. president goh: i do not see any comments. i will move their adoption. >> public comment on the minutes? seeing none, i will call the roll on that. a motion by president goh to adopt the minutes. commissioner fung: aye. commissioner peterson: aye. commissioner hwang: aye. >> that motion carries a 4-0. we'll go to the next item, item four, appeal 10-131, ike's
place versus the zoning administrator for the subject property on 16th street. appealing in of this a violation and penalty, regarding allegation of illegal commercial activities. jurisdiction was granted on november 17. please note this matter was on the march 23, 2011 calendar and was continued to allow the appellant and opportunity to review the subject property owner's brief. we will start with the appellant's attorney, mr. fukuda. you will have seven minutes. >> i will be brief. the first item i want to mention
is that the actual appellant is a california corporation. ike's place is the business name. i simply ask the commission to recognize the true appellant in this matter. i would start by saying that bike -- that ike has suffered expensive lessons and learned a great deal in this matter with regard to his property. briefly, historically, he and his mother bought this 400 square foot store from a seller in 2007 and paid $3,000 for that store. they installed approximately 100 dozen dollars of equipment in the store. ike's mother took out mortgages
on her house to finance the purchase of the business and operate the business. ike has improved the business for over two years. he went from no employees to -- he had 50 employees. in terms of the application, the city did not request a conditional use application for two per se -- for two years after he occupied the premises. the planning department advised him to apply for a conditional use permit last spring for specialty food-service, which he did. ike spent $5,000 for that application and hired an expediter to move the application forward. ike was a sub-tenant. his sub-landloard of the
conditional use application with the planning department. however, he became sick. he suffered a serious cancer problem. due to the cancer problem and his financial problems, mr. chao made a faulty judgment in the eviction matter, which gave ike no remedy in the law. in terms of the conditional use application, the city process the application. unfortunately, the landlords attorney, in my opinion, changed her opinion and wrote a letter to the planning department which in essence blocked ike from continuing with this application. further, the landlord blocked ike from making corrective actions on building code and
health department violations. ike was intending to make corrections and repairs on those measures, but the landlord's attorney prevented him from making any corrective action in the building. as a result of having to move, he moved to a temporary location last september. he has been there until now. he now has a new location. because of the fact he has had to have that temporary location, that cost him quite a bit of money. he is about to move to his permanent location. as a result, the disruption cost is approximately $100,000. moreover, because of this double move and not having the full scope of time in a given week to operate -- he cannot operate on sundays, for example. he has lost over a hundred thousand dollars of sales.
because of that, he has been forced to lay off several staff, because of the double move and the loss of a certain amount of business. as a result of the temporary location, ike spent time looking for a new location. he found one. in december, the planning commission unanimously approved the new location. he hopes to move to that new location, hopefully next week. that is with your help. so i would suggest to you that in the eviction matter -- the superior court took, in my opinion, a health the medium in regard to this issue -- a healthy medium in regard to this issue. the landlord sought $30,000 of
attorneys' fees from ike, and the judge felt ike had suffered enough. as a matter of law, that is the end result. my request would be that the commission recognized what the superior court did as an accommodation to ike because of the fact he has spent a substantial amount of money prosecuting the conditional use permit and was not able to complete it, through no fault of his own. in essence, the landlord blocked his application for a conditional use. he made the application promptly after kate conner asked ike to proceed with it. and he found a temporary location. but it is very difficult to move a business instantaneously, so it took a month or so to find the new location.
but he moved promptly. as a small business owner, i think he did the best -- he made the best efforts he could, in terms of solving the issue with regard to the conditional use application. my request to the commission is very simple -- that you not penalize ike for this issue of the delay. i would ask the commission to recognize that he did make his best a efforts to comply with the law, and to make that filing for the conditional use. my recommendation would be that any penalty i do not agree to, by virtue of the fact i stated. if there would be any penalty, it should be imposed on the landlord, who in essence blocked a remedy. thank you the opportunity of
making a presentation. >> thank you. we can hear from the property owner or his agent or attorney. >> good evening. i represent dennis drobitch, the property owner where ike's place was located. we have no objection to the request that the fine be reduced or dismissed altogether. we wish ike every success in his business. we take exception to some of the characterization of what occurred that were just stated, to the extent that ike is blaming his noncompliance with the law on the owner.
that is incorrect. it is true he was a tenant of tenant gerry chao. we had no interaction with ike until november 2009, when we began receiving many nuisance complaints from residential tenants located around the business. i guess the sandwich shop had appeared on a tv show that showed it was a great place to get a sandwich. he had a phenomenal success and huge lines at side. it was a real problem for the residential tenants because it was very noisy and open very long hours. customers for blocking the entrance. so we started getting a lot of complaints. initially, we asked mr. chao to deal with it as the master tenant. when that was unsuccessful, we
stepped in and investigated and found that we felt the complaints were very legitimate and the space that was rented was very small. the phenomenal success he was enjoying -- he had outgrown the space, and it seemed like he should move. we contacted him and suggested that we negotiate some kind of time limit for him to be there and find another location. that basically was refused. as we were investigating, we found that other things were a problem besides the nuisance complaint. we checked his permit application, which was made in december 2007, where he represented to the city that he was going to run a copy shop and not do food preparation. we discovered the permit was an improper permit. we talked to kate conner at the planning department. that was another violation.
there were significant problems with work they were doing on the property, or they submitted plans -- where they submitted plans and the work did not comply with the plans. we could not get him to agree to relocate. i never lead anyone to believe we were born to allow him to stay there. during the course of the eviction action, that is when mr. shiheda made an application for a conditional use permit to match the operation he had there. the asked for our agreement or condition, and naturally we did not want that, because we wanted him to relocate. that is what happened. we had to pursue the eviction action, which cost quite a lot of money. we were eventually successful and got a judgment. that is the story from the landlord's point of view. thank you.
commissioner hwang: before we go any further, i should disclose that i believe that i have been involved in a prior case with you, perhaps when you were at a different firm. we have only spoken by phone, so i did not recognize you, but i recognize your name. >> this must have been years ago. commissioner hwang: it is not going to cause any bias on my part. thank you. >> mr. sanchez? >> thank you. good afternoon. i would like to begin with a brief overview of the timeline of the enforcement issues here. we received our first complaint at the end of march 2010, march 31. there was a self-service operation when the permit history only had them operating
as a retail coffee establishment. on april 21, the department issued an enforcement process, which is the first step of the process to determine if a violation exists. that was on april 21. in may, department staff made contact with the appellant and had several conversations about what options existed. it was determined there were a small self-service restaurant operating illegally. we looked at how we could help them come into compliance with the planning code. we set a conditional use would be an option to legalize in place, or they could relocate to another facility. it is my understanding the appellant considered moving to other facilities but ultimately decided to submit the conditional use authorization.
that was submitted on june 2, 2010. it was not until a few days later the department's staff realized the signature the head or the owner authorization did not match the property owner. i believe that was ultimately determined to be the main or the master lessee, and not the property owner. we informed them on june 9 of the need to obtain authorization and provided them time to get owner authorization. it was found out they could not get owner authorization to complete the application process. a little over a month later, we issued the notice of violation and penalty. that was on july 13. that provides 15 days for an appeal to this board. no appeal was made of the notice of violation and penalty. the penalties do not kick in
until that appeal period has passed, so they did not begin until july 28. ike's place closed 48 days later. there is a per day penalty of $250 a day. the total for 48 days operating in violation is $12,000. that is the penalty before the board this evening. in october, october 7, we sent them the courtesy reminder to let them know there was this an outstanding panel to. in october, there was the jurisdiction request for this and the board granted jurisdiction. we are here now in april, dealing with the notice of violation and penalty. it is clear all along there was no doubt the violation had occurred here. it was a question of the penalties and whether they could or should be reduced. planning cut section 176 does
provide for the board to reduce the penalties to no less than $100 a day. that would be $4,800. i would note that while there are some unique circumstances here, given the relationship between the appellant and the property owner, the department did make significant effort to try to bring the property into compliance and a significant amount of time working with neighbors during this time as well. there were very negative impact on the neighbors during this time. the department would argue a decent portion of that penalty should be retained to fund further followed enforcement -- further code enforcement efforts. it would make a significant statement that penalties in san francisco do have consequences. if you commit a violation of the planning code, there are consequences. with that, i will be available
for any questions. commissioner peterson: what about the statement that it was two years before the city asked for a conditional use permit? >> we did not receive a complete until last year. we approved a permit for retail coffee. commissioner fung: mr. sanchez, during the course of discussions between your department and the appellant from may to july, when the actual notice was issued, was the appellant made aware of potential penalties? >> it was in the enforcement notice, the first notice that went out in april. they were aware from april 21, 2010 of potential penalties. commissioner fung: that particular document is not in our pocket. it very clearly states what the penalties are?
>> yes. i apologize if it was not in the material we submitted. it is a form letter format we send to all violators. commissioner fung: it is not necessary to place it, but if you would read the relevant portion that corresponds to the same penalties in the final letter. >> under the subsection "penalties and appeal rights," it says that failing to comply it